Of Law and Life and Other Things That Matter: Papers and Addresses of Felix Frankfurter, 1956-1963 [Reprint 2014 ed.] 9780674332065, 9780674332058

Citation preview

OF LAW AND LIFE &

OTHER THINGS THAT MATTER PAPERS AND ADDRESSES OF

Felix

Frankfurter

1956-1963

Harris & Ewing

OF LAW AND LIFE

& OTHER THINGS THAT MATTER PAPERS AND ADDRESSES OF

Felix Frankfurter 1 9 5 6 - 1 9 6 3

EDITED BY PHILIP B. KURLAND

THE BELKNAP PRESS OF HARVARD UNIVERSITY PRESS CAMBRIDGE, MASSACHUSETTS

I 9 6 7

© copyright 1965 by the President and Fellows of Harvard College All rights reserved Second printing Printed in the United States of America Library of Congress Catalog Card Number 65-7916 Distributed in Great Britain by Oxford University Press, London

PREFATORY

NOTE

I AM indebted with affectionate gratitude to my learned friend, Professor Philip B. Kurland, of The Law School, The University of Chicago, for collecting the fugitive pieces herein and giving them permanence by putting them between the covers of a book. Nor can I fail to express my warm appreciation to my wife for improvingly editing some of these pieces in their original form by means of her skillful pen and literary taste. Felix Frankfurter Washington, D. C. August 5,1964

CONTENTS

I. Postscript to Μ'Ν tighten's Case (1952) II. Annual Survey of the Law (ip$6)

ι 5

III. Personal Recollections of Jonas S. Friedenwald (1956) IV. Franklin Delano Roosevelt (1956)

9 21

V. Dean James Barr Ames and the Harvard Law School (1956) VI. The Best Advice I Ever Had {1956) VII. The Cooper Union: Pacemaker {1956) VIII. Louis Dembitz Brandeis (1956) IX. Woodrow Wilson (1956) X. On Entering the Law (1957) XI. Henry W. Edgerton (1957) XII. The Supreme Court in the Mirror of Justices (1957)

26 37 42 54 63 70 74 77

XIII. Jerome N. Frank (1957)

100

XIV. Maurice Finkelstein (1957)

102

XV. Lord Percy of Newcastle (19^8)

104

XVI. The Morris Cohen Library (1958)

107

XVII. Israel's Tenth Anniversary (1958)

113

XVIII. Federalism and the Role of the Supreme Court (1958) vii

122

Contents XIX. Learned Hand's Fiftieth Anniversary as a Federal Judge (1959) XX. Calvert Magruder (1959) XXL Felix S.Cohen {i960)

133 136 143

XX//. The Profession of the Law (i960)

146

XXIII. Benjamin Nathan Cardozo (i960)

185

XXIV. XXV. XXVI. XXVII.

Charles Culp Burlingham (1960) Zechariah Chafee, Jr. (i960)

201

Monte M. Lemann (i960)

208

Edmund M. Morgan (1961)

213

XX VIII. Harold Laski (1961) XXIX. XXX.

Learned Hand (1961)

XXXII.

217 224

Prime Minister David Ben-Gurion (1962)

XXXI.

191

231

Robert Frost (1962)

232

The Interstate Commerce Commission (1962)

235

XXXIII.

Retirement from the Court (1962)

246

XXXIV.

Niels Bohr (1962)

251

XXXF. XXXVI.

Lord Brand (1963) John Henry Wigmore (1963)

253 256

viii

OF LAW AND LIFE eb* OTHER THINGS THAT MATTER

«μ: I :»

Postscript to M'Naghten's Case T h e following exchange of letters took place between Mr. Justice Frankfurter and Sir William Haley of The Times (London) after The Times referred to M'Naghten's Case as M'Naughteris Case. The correspondence was first published in The Law Quarterly Review 74:321 (January 1958).

SUPREME

COURT

OF

THE

UNITED

STATES

Washington, D.C. November 3, 1952 Dear Sir William: That poor creature, Daniel M'Naghten, not only killed an innocent man, but also occasioned considerable conflict between law and medicine. But in so doing he gave his name to a leading case and thus obtained a permanent place in the history of the law. I am sure that The Times does not want to make inroads on his fame. A strange fatality has dogged the spelling of his name; too often it is incorrectly spelled. It is M'Naghten, not M'Naughten or any of the variants of its misspelling. Or am I wrong in relying on the spelling given by Clark and Finnelly in their report of the case? See Daniel MNaghteris Case, 10 CI. & Fin. 200. Sincerely yours, Felix Frankfurter Sir William J. Haley Reprinted with the kind permission of The Law Quarterly Review (Oxford).

ι

Of Laiv and Life and Other Things THE

TIMES

November 10, 1952 Dear Mr. Justice Frankfurter: The strong leaven of Daniel M'Naghten still works on. He is a benefactor indeed to have occasioned a letter from you. The interesting thing about the point you raise is that all through the proof stages of the article M'Naghten had appeared as such, but so strong is the tradition of The Times that it altered to M'Naughten just as it was going to press. One of the most powerful things which hits a newcomer to Printing House Square is the magnificent strength of tradition, and the fact is that that was how The Times spelt him in its report of the original trial. The exact spelling has been a problem down the years. No doubt high authority must be given to Clark and Finnelly but there are other authorities, dare I say it, equally high who disagree. It may amuse you to have the following short list got out by the writer of the article when I told him you had raised the point. (Incidentally, he is that kind of man.) 1. The original Gaelic—Mhicneachdain 2. The lunatic himself, signing a letter produced at the trial —M'Naughten (as reported in The Times). 3. The State Trials—Macnaughton 4. Clark and Finnelly—M'Naghten 5. Archbold, 1938 edition—Macnaughton 1927 edition—Macnaughten Index—Macnaghten 6. Stephen, earlier editions—Macnaughten later editions—Macnaghten 7. Halsbury, earlier editions—M'Naughton later editions—M'Naughten 8. Select Committee on Capital Punishment, 1930—McNaughten, and several other spellings 2

Postscript to M'Naghten's Case 9. Encyclopaedia Britannica—different spellings in different articles 10. Royal Commission on Capital Punishment, 1949, instructed by its Chairman, Sir Ernest Gowers— M'Naghten. After all that I do not quite know what The Times can do if it is to desert its long standing tradition based, as you see, on a letter signed by the man himself. Perhaps it would be a nice tribute to the spirit of The Times if we went back to the original Gaelic. Yours sincerely, W . J. Haley The Hon. Felix Frankfurter Supreme Court of the United States Washington 13, D.C., U.S.A.

SUPREME

COURT

OF

THE

UNITED

STATES

Washington, D.C. November 26, 1952 Dear Sir William: Your kindness in sending me a variorum of Mhicneachdain afforded me another experience with the perplexities and exhilaration of scholarship. But you also raise what the lawyers like to call "a nice point." T o what extent is a lunatic's spelling even of his own name to be deemed an authority? And when you speak of "the magnificent strength of tradition" in Printing House Square, you stir in me the suspicion that the task of the Editor of The Times is not unlike one's job on this Court—namely, how to reconcile the conflicting demands of the needs of stability and of 3

Of Law and Life and Other Things change. In expressing greater confidence in the ability of the Editor of The Times than in my own to square that circle, I speak with the bluntness that is supposed to be American. Very sincerely yours, Felix Frankfurter Sir William J. Haley

4

«MC

II

Annual Survey of the Law M r . Justice Frankfurter contributed the foreword to the 1955 Annual Survey of Massachusetts Law (Boston, 1956), the second annual survey of the law of that Commonwealth published by the Boston College School of L a w .

one of the most encouraging manifestations of aliveness in American legal studies during the last two or three decades is the proliferation of law reviews. I am not unaware of the recurring criticism that the contents of the reviews in the main fall short of excellence. T o be sure, the survival value of these writings is not high. Few, extremely few, are seminal contributions of the order of the Brandeis and Warren essay, "The Right to Privacy," or Holmes' "Privilege, Malice, and Intent," or J. B. Thayer's "American Doctrine of Constitutional Law." 1 Nevertheless, as one who continues to be in the clutch of the academic habit of examining the outpouring of law reviews, even if only cursorily, I am struck with how much good there is in these reviews, considering the large number which compete for desirable contributions. SURELY

But until very recently one inadequacy could be charged against all American reviewing of the legal scene. One of Reprinted with the kind permission of Boston College Law School. 1 Louis D. Brandeis and Samuel D. Warren, "The Right to Privacy," Harvard Law Review 4:193 (1890-1891); Oliver Wendell Holmes, Jr., "Privilege, Malice, and Intent," Harvard Law Review 8:1 (1894-1895); J. B. Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law," Harvard Law Review 7:129 (1893-1894).

5

Of Law and Life and Other Things our national complacencies is the conviction of superiority of American legal education, a pride which English scholars have from time to time encouraged, certainly at least in part, to foster schemes of educational reform in England. But in the respect relevant to the pages that follow, England had been a pacemaker, and a pacemaker behind which this country had lagged for longer than a decade. I refer to the Annual Survey of English Law, beginning with 1928, which was a collaborative product of the Departments of Law and International Studies at the London School of Economics. T o be sure, our law reviews have had, from the beginning, notes on the rulings of courts, comments on new legislation, and, in a f e w instances, reviews of contemporary legal literature. But such attention to current legal events is necessarily piecemeal and fragmentary, is concerned with trees which too often do not convey the woods. T o pass under scrutiny the law for a year, in a particular jurisdiction, and to place the items in the perspective thereby afforded, promotes reflective understanding, enables one to see what is episodic, perhaps even a legal sport, and what is more permanently significant. It also brings order out of the unrelated outpouring of the legal mills and thereby fosters the harmonious development of law. Moreover, by bringing together the manifestations of explicit law-making and judicial law-shaping, emphasis is secured where it should be placed, upon the significance of all the influences that go to make up the designed pressures by which the affairs of men are finally settled. Such were the ends that were served by the first survey of English law for the year 1928. Within the covers of an attractive book, these English law teachers gave us a critical account of case law, of important legislation, dele6

Annual Survey of the Law gated as well as parliamentary, of relevant legal literature, articles and official reports as well as books, in the various domains of the great kingdom of the law. I note with deep regret that this admirable series terminated in 1940, doubtless one of the casualties of the war. This desirable English innovation had, in its comprehensiveness, no American follower for nearly two decades. While today about a dozen American law schools, sometimes in conjunction with their state bar associations, publish what may without exaggeration be called annual surveys of their state law, one would have indeed to be blindly patriotic to find that all these are compeers of their English precursor. Happily, the opportunity which has generously been afforded me excludes the ungracious responsibility of making invidious distinctions. Mine is the happy function of greeting the second Annual Survey of Massachusetts Law, given to the legal profession of Massachusetts, the larger community of the Commonwealth, and the whole world of legal learning, through the enterprise of the Boston College Law School. Of course I have not read every word of this Survey. I hold that not the least of the equipment of a competent lawyer is the capacity for discriminating reading. I can truthfully say that I have adequately tested the quality of this Survey and can vouch for the Tightness of its conception and the solidity of its execution. Its twenty-three chapters fall into three broad parts—Private Law, Public Law, Adjective Law. I must of course disclaim any specialized knowledge of any branch of Massachusetts law. But, after all, whatever its excellencies and diversities and perhaps even its rare perversities, Massachusetts law is not alien to one whose life-long concern has been law, even if one did not have an ex officio relation to the judicial life 7

Of Law and Life and Other Things of the old Commonwealth. Good work scratches one, as it were, in passing and an examination even of chapters dealing with matters wholly remote from my interest engenders confidence that the statement of decisions and legislation is accurate and well balanced. W e are given not merely timid recital but critical judgment. In the particular areas about which I am least ignorant, the legislation and the cases appear to be summarized with scrupulous care and they are placed in appropriate perspective. H o w could this not be so, considering the fact that the various chapters were entrusted to men of established scholarship and experience in the actual administration of the various aspects of law under review. Nor is there anything parochial about the enterprise. The civilized assumption is made that different institutions of learning constitute a confraternity of scholars. While most of the authors are, and appropriately so, members of the Boston College faculty of law, the Survey has not moved solely within the charmed circle. It has drawn upon the available scholarship of the Commonwealth's law schools; happily it has also tapped expert understanding at the bar and among administrators. B y those to whom much is given, more is usually asked. I hope I am not unappreciative of this excellent Survey if I suggest that in the annuals to come there will be added a survey of the relevant legal literature dealing with the problems with which the Survey is concerned. And may the annuals continue so long as the reign of law prevails in Massachusetts.

8

«IC

III

Personal Recollections of Jonas S. Friedenwald Jonas S. Friedenwald was one of this country's foremost ophthalmologists, both as practitioner and researcher at Johns Hopkins Hospital in Baltimore. It was at an early age, indeed, two full decades before his death, that he received the American Medical Association medal for research in ophthalmology. T h e following address was given at memorial services for Dr. Friedenwald, conducted at the Johns Hopkins Hospital on February 10, 1956.

IN THE privacy of our own feelings we are all heavyhearted that Jonas was not allowed to run the full course. But that has not brought us together. W e are not here as mourners; we are here to convey our gratitude and to reenforce and re-vivify the joy, the stimulus, the strength we can draw from his life and have drawn from it, each in his different way, throughout the years of our relations with him. I am not going to talk on any formal subject because that would not be true to our relations. It is sufficiently significant that one like myself, so far removed from his professional interests, should be privileged to speak a word on this occasion. I suppose the reason is that someone outside of his more scientific interests ought to give a sense of the amplitude, of the depth and the richness of the man who was never obscured by his profession. As Dr. Maumenee has indicated, I came to know Jonas when he turned up at Harvard (I was then on its law faculty), a youngster who already had his medical degree and had already pur9

Of Law and Life and Other Things sued basic mathematical studies at Columbia. In a way, that was not the beginning of my relations with him. For I knew, rather intimately because of our common interest in Zionism, that benign gentleman who was his father. Very soon, however, we achieved an independent relation, for only a most obtuse mind could fail to realize that here was an extraordinary personality. I happen to have had a good many intimate friends on the medical faculty at Harvard, younger men and older men. And it was not at all surprising for me to learn that the great Harvey Cushing detected the qualities of this young ophthalmologist and asked him to make an examination of every man in Dr. Cushing's ward at the Peter Bent Brigham. Very soon I began to realize that Jonas' interests far exceeded the boundaries, however far-stretched, of the medical sciences. He wanted to know—and this was characteristic of him—about the basic ideas of law and jurisprudence. "What can I read?" We had some talk, a good deal of talk, on and off. He wanted to know; he wanted something more than fugitive talk, and so I bethought myself and told him to read Holmes' Covimon Law. That's not an easy book—I can assure you that Holmes' Common Law is indeed tough going. It is not a book for freshmen but even so I gave him Holmes' Common Law to read, and he read it. I do not mean he passed the eye over the page. He read it thoughtfully. And I remember well saying at the time to a friend of mine: "This young doctor has asked me more embarrassing questions about some of Holmes' chapters than ever I was asked in discussion about the book by colleagues of mine on the Harvard law faculty." (And this is not a denigrating remark about the members of the Harvard Law School faculty.) And so the years went on and he came to the fullness of his powers. Jonas and I kept up this intimacy so far as ιο

Jonas S. Friedenwald

geography permitted—after all one can write, and he did come occasionally" to Boston, and I did come to see him at Baltimore, and eventually I was transferred to Washington. From my early reading days I gathered something of the great controversy regarding the role of heredity as against environment: what is nature and what is nurture. In the case of Jonas he undoubtedly started with a superlative brain, superlatively unique equipment that was his, that was nobody else's. As has already been indicated, however, the two powerful forces that brought glory and developed the native, indigenous qualities of Jonas were, of course, the great tradition into which he was born and the environment which he found here at The Hopkins. I think Dr. Woods said he absorbed, must have absorbed, so much at home that in one year he acquired knowledge that it takes even good students three years to make their own. But he absorbed more than knowledge; he absorbed a comprehensive, cultured outlook on life. His father—I need not tell a Baltimore audience—was one of the most cultivated of men. His grandfather was a man of originality, pertinacity, and curiosity of mind. And his great-grandfather evidently had those qualities of enterprise and courage which in different aspects and through different modes Jonas disclosed. He revealed them in the adventures of his mind. Then there was The Hopkins. Thanks to this occasion, I found it a liberal education to read a sizeable library on The Hopkins in order to understand the kind of environment into which Jonas came. I do not think it is a language of hyperbole that led Dr. Simon Flexner to speak, in his biography of Dr. Welch, of the heroic age of medicine. All the fortunate, fortuitous circumstances by which some people were called here—and by which some people did not come—all the enterprising genius of President Gilman, led this to be a great seed-bed of adventuresomeness, of ιι

Of Law and Life and Other

Things

daring, of enterprise, of enthusiasm—that great dynamo of thought—to be the place in which Jonas was nurtured. Here he had as examples men who were not just doctors but in whom doctorship was part of a full life. T h e great man (and enchanting creature that he must have been) Osier, was gone. But when a man like that leaves, something of him, a good deal of him, is left behind. Y e t Popsy W e l c h was still here, and Halstead was here. I don't know whether Dr. Howard Kelly was here during Jonas' student days. But, then, he is to me more elusive. I should not suppose that culture was the dominant quality of his life. In their different ways they were all great men. T h e y had zest, zest for inquiry. T h e y were not confined and imprisoned, as most of us are confined and imprisoned in our respective professions. And that inquiry of Jonas': "I want to know something about the basic ideas governing law, the fruitful theories in the law," persisted in him, not only as to law, but as a good many of you know, in other domains of man's adventures. However, law continued to be a rather, what shall I say, considerable side interest of his. And I began to realize that the odd notion of the interrelation of the sciences, not only the interrelation of the sciences but of interest outside the natural sciences, was fast growing. There was a realization in educational institutions, and in the minds of men generally, that problems which theretofore had been deemed distinct imperceptibly slid one into another. Thus the great questions, not only of medicine but in law, became not merely the technical content of this or that course or this or that problem, but questions that were relevant to problems to which specialists give their lives and which become clearer by the asking of profound questions. T h e questions that became clearer and profounder were the common questions bearing on the creative process, how do w e think what we think, what are the farther reaches of what we think. 12

Jonas S. Friedenwald

Now law and medicine have some kinship. Law, of course, more or less reflects (usually less than more) the advances of thought in every domain. But in relation to medicine it has, of course, some immediate concerns. The criminal law, not merely its notions of insanity, but the whole domain of criminology, derives from, or is based on, assumptions which one is again and again convinced are outmoded assumptions of fact. Take the patent law. What is an invention? How do you determine what it is that has been invented? Lawyers talk about laws of nature—a phrase infected by evasions and ambiguities. What are the laws or works of nature? You can see how Jonas, having an intellectual holiday from his profession, and I, eager to get what glimpses I could of intellectual issues that were outside my daily concerns but relevant to them, would have a grand time batting balls into each other's court. And you will readily appreciate what relish and stimulation I derived from such talks. Sometimes things got put on paper. In the realm of ideas there is no hierarchy. There is not an older man and a younger man. Ideas are not ticketed according to protocol. One of the things I got out of my reading about the early Hopkins days—and I hope they still are the same—was that lines were crossed between the old and the young in adventures of the mind. Such it was between Jonas and me from the time he was a lad till the other day; sometimes it was a specific problem which I would put to him; sometimes it was a specific problem that he encountered in his reading or reflections which he would put to me. It always seemed to me that the way to honor the memory of a man whose influence persists is to convey him in his own person. How did he express himself? What did he think when he put his slippers on; what was he like in his intellectual bathrobe? What did he put on paper when he had little thought that anybody else except the recipient ι3

Of Law and Life and Other

Things

would read it? W i t h this in mind I have gone through the file of m y correspondence with him over the years. A n d with your permission I should like to read some of his observations which give point and concreteness to what I'm trying to say about the untrammeled quality of his mind, the realization that courses are devices of educators and do not exist in nature. There are interrelations that disclose ultimate questions of concern to the lawyer, the engineer, the artist, the doctor, even the judge. From time to time I have been troubled to understand what is really meant b y "science," what consitutes "science," in any respectable use of the term. So I asked him once if he would put on paper what science is to him, and I will read his reply. I will read it to y o u with a great deal of confidence that it is important because a distinguished scientist to whom I passed it on was so struck with it that he asked Jonas if he might quote it in something he was writing. Here it is: Science is a social phenomenon. A scientific discovery does not become part of the body of science until it has been comprehended and confirmed by others. Even the most private scientific activity of the individual scientist must be based on the comprehension of what others have contributed. Consequently the language of science is as much a tool of scientific progress as any mechanical gadget which we use. If we allow that tool to be dulled, progress is slowed. Imagine what a fruitful line of thinking and admiration that opens up to the lawyer and the judge whose tools are words and nothing but words. This presents a continuing problem because the advance of knowledge results in the continuous change in the meaning of words. A whole book on constitutional law could be written with that as the legend of the title page. 14

Jonas S. Friedenwald When we succeed in inventing scientific words of enduring usefulness, we do so largely by naming the invariants we have discovered. In such case the advance of knowledge sharpens the denotation of our words and enriches their connotations. On the other hand, when we have not discovered the invariants we are forced to give names to evolving forms—such as sovereignty of senescence. T h i n k of combining in one generalization and senescence!

sovereignty

Progress of knowledge on social evolution may still enrich their connotations, but, unfortunately often shifts their denotations. If we ignore these shifts, w e end up by talking incomprehensively, with rich connotations, about an unspecified subject. I canvassed a problem with him in connection with the conduct of a great educational institution, involving the relation of high scientific endeavor to the conditions under w h i c h scientific endeavor can be fruitful. Listen to this: T h e talent for deliberative wisdom is most rare, I suppose, no less rare among natural scientists than among others. Perhaps one reason is that it requires some practice to develop, and our living today is so devoid of cooperative effort that we do not learn how to deliberate together. Certainly the whole training of a natural scientist is pointed in another direction. One of my old teachers used to say that the university was a place where a man with some talent for teaching was forced to do research, and a man with some talent for research was forced to do administrative work. The exceptions are the rare administrative geniuses like Popsy Welch and that wise old recluse, like J . J . Abel, one of my high Gods, who refuses to allow his administrative responsibilities to grow beyond the scope of easy and intimate management. Yet, surely, we should learn to manage our affairs more wisely for, otherwise, the [X]'s of the world manage them for us. What are we to do about these fellows? Down here w e have enough of them and I wish I could feel that the medical school does not suffer under their guidance. M y own strategy has been to hew out an impregnable fortress for myself and to 1

5

Of Law and Life and Other

Things

give advice only when I am asked. While this works fairly well, at least for the individual, in the natural sciences, I am not sure that the social sciences can be successfully promoted on such an individualistic basis. And you will forgive this personal reference, but it is relative to my sketch of him. So it seems to me that we need most urgently the stimulus and wisdom that you bring to this problem and it becomes very important that the painful experience with [X] should not discourage him from applying the effort elsewhere. The stakes are too important. In one of my talks with Jonas he told me a story that sheds light on his relaxed temper of mind. His motto seemed to have been: ohne Hast, ohne Rast, "without haste, without rest." Serenity it is; serenity, which, I think, is hard to attain unless the good Lord has deposited something of what we call humor. I had occasion to repeat to Jonas the cynicism of a friend of mine about the medical profession. Jonas said that it reminded him of a minister, who came to see him recently, who was suffering from eczema. "He had your friend's cynicism about the medical profession and said to me, 'After all these years of medical research I do not see why your profession has not found the cause of eczema.' I offered to bet him ten to one that we would find the cause of eczema before he found why the righteous suffered." Having read a puzzling article on a psychological matter, by a writer of considerable reputation, I asked Jonas whether the article was so obscure to me because the writer was too profound for my understanding or whether he was too muddleheaded to be clear. After analyzing some of the illogical positions taken by the writer, and, in passing, making some references to Marx and Freud and how both of them were misled by Hegel, he made this ι6

Jonas S. Friedenwald delicious comment: " N o doubt economics and psychology are difficult subjects, but I do not think their difficulty is minimized by rejecting criteria for verification." From time to time he wrote me about Supreme Court opinions and I'll read you his comments on two opinions dealing with very different subjects. One dealt with the problem of disposing of a claim of insanity intervening after a conviction for murder. The law being settled that society does not hang or electrocute an insane man, the question arose, as so often the question arises, not merely what is abstractly the right answer, but who is to determine it and by what procedure will you get the appropriate light and avoid darkness? The Court had such a case in which the question was whether a governor could decide on private advice that a man was not insane without giving the victim, or those near him a chance to be heard. Listen to this for a fellow who was ticketed an ophthalmologist: I am intrigued by the Solesbee case because of the evidence it seems to me to bear on the decline of Christian doctrine. For those who do not believe in life after death there does not seem to me anything especially inhumane in executing an insane person. The argument that a person who becomes insane while awaiting execution is thereby deprived of the possibility of presenting some extenuating evidence makes sense in relation to due process [he was unafraid of these big terms, you know—he knew most of them were stuffed lines], but only at such a technical level that a violation of due process in this respect can hardly be called an offense against the basic and popularly held mores of our society. It seems to me, therefore, that the moral revulsion against execution of an insane person in the past must have had its deepest roots in the belief that the unshriven soul is damned. Evidently, this belief is not potent among the brethren nor, in their opinion, among the people of this country at large. I wish that I could feel sure that the decaying Christian morals are being replaced by something as good or better. ι7

Of Law and Life and Other Things Then there was another case in which he thought the Court was too lenient. This is undated, but plainly it was written on one of your delightful summer days. It is hot and sticky down here. I have been trying this Sunday afternoon a combination of beer and electric fans, but I am beginning to think that they cancel each other out. The decision in the revocation of naturalization case is bitter medicine for me to swallow, though being a good patient I earnestly expect that it will do me good. However, to get it down I needed something of a mystic faith in the law analogous to your mystic faith in medicine. What I have trouble in understanding are the criteria by which a court decides between the obvious and simple justice in an individual instance and the principles of supposedly wider applicability. This is about as penetrating comment on problems of jurisprudence as you can concoct. In this instance the choice was no doubt made easier because nobody suffers directly and personally through giving this fellow more than he deserves, but in the long run, are the general principles anything more than an aggregate of individual instances, and what bearing has that aggregate upon the exceptions which fall outside of its domain? You will recall that he had read Holmes in his young Harvard days. Some ten years later he returned to Holmes. What he wrote me led me to suggest that he misapprehended Holmes. This was his reply: I see now that Holmes's contribution is much greater and more profound than I had thought, and that he has not merely followed the historical path of the evolution of the law, but has also sought and found some of those hard, bright, abstract principles which have determined the evolution. This is so far beyond anything that I had suspected that I should like very much to reread the Common Law. Can you suggest any elementary book which I might study first in order to familiarize myself with the meaning of the technical legal phrases which helped to obscure my understanding at the first reading? ι8

Jonas S. Friedenwald Is it any wonder that this is the fellow who took along for his vacation reading Gibbon's Decline and Fall and read all the six portly volumes, and who was one of the very few people, at least in my acquaintance, who actually read all of the Toynbee and not merely ah'd and oh'd about it, or damned it at second-hand or on the basis of tidbits? N o w these are from his letters. I should like to read you two extracts from letters I wrote to him which happened to have been dictated. I read them because they illustrate his impact on at least one man whose life is spent in totally different vineyards of learning and inquiry. H e sent me a rather long letter that he wrote to the Baltimore Sun. He was aroused by what he deemed less than adequate treatment by the Baltimore Sun of matters concerned with socialeconomic legislation. In his covering note to me he said, "I hope you do not think too ill of this. It is my first effort at polemics." In part, I wrote him: I take comfort in the thought that you are habituated in your primary devotion to ophthalmology and that, besides, you have an iron even if genial will. That your excellence as a painter has not diverted you from your primary allegiance to science gives me assurance that your new-found talent as a political controversialist will not divert you from your laboratory into the arena. If your correspondence with [Y] be the fruit of your first political polemic, anybody else but you would be tempted to abandon science, painting and law and all your other prior pursuits in order to become a modern Bagehot. You illustrate once more that good writing, certainly as a foundation, means having something to write about, and you certainly seem to have mastered the particular items on which you had a real case against the Sun. And now let me read you the last letter that I had occasion to write him, not knowing it was to be the last. I had sent him a paper I had then recently delivered on which —believe me I'm not boasting—I had spent months of 19

Of Law and Life and Other

Things

worry, reading, thought, and writing. And in that paper of some twenty-five pages he picked out for special mention the one sentence that I would on the whole have least liked to spare. And so I wrote him: By pouncing on the particular sentence that you hit in my Harvard Marshall Address, you remind me of your perceptiveness more than thirty years ago in matters legal. In response to your request for something that would shed light on basic legal concepts, I suggested Holmes' Common Law, not at all an easy book. You put some questions to me, after your reading of it, which led me to say that your inquiries were more searching than I had experienced from most of my colleagues on the Harvard Law School Faculty! I read all this for my last sentence: You give proof to the truth that even the most seemingly disparate problems of the mind are not without some affinities —certainly affinities in the ways of getting understanding of them. I said we are not here as mourners. H o w could we be in light of that previous quotation which three colleagues of his have given us in their memorial notice of him, his profoundly moving and intrepid words when the ominous diagnosis was made in August, expressing his "firm determination to squeeze as much joy and interest, love and meaning out of the time still available as possible." Viewed in these terms the extent of that time is a blessing for all of us. And so I say: Nothing is here for tears, nothing to wail Or knock the breast; no weakness, no contempt, Dispraise or blame; nothing but well and fair, And what may quiet in a death so noble.

2ο

«HC I V DK»

Franklin Delano Roosevelt On Memorial Day, 1956, a ceremony was held at the graveside of Franklin Delano Roosevelt in H y d e Park, N e w York, at which Justice Frankfurter delivered the following remarks.

not a meeting of the American Historical Association. This is not an occasion for a documented account of the exercise of the Presidency by the only man in its history who held it for three terms and had begun the important fraction of a fourth. I shall not attempt even to sketch the significance of Franklin Roosevelt in relation to his times—the convulsions, national and worldwide, of which he was the center—the storms that he rode and how he surmounted them, the old problems that he solved, the new that he encountered and partly stimulated. I shall not indulge in the humorless impertinence of forestalling what is called the verdict of history. Indeed, Clio has the teasing elusiveness and seeming caprice of a much-wooed woman. Fluctuations of historic judgment are the common lot of great men, be they statesmen or poets—Jefferson and Lincoln, Shakespeare and Walt Whitman. It is not hazardous, however, to make one forecast. Franklin Roosevelt will meet what has been rightly defined as the final test of Presidential greatness: " T o be enshrined as a folk hero in the American consciousness." He will continue to embody in an uncommonly gay and courageous manifestation the traditions and aspirations of Americans. T H I S IS

But if history be the ultimate judgment seat, a man's contemporaries have a special claim to be heard before it. 2 ι

Of Laiv and Life and Other Things It has been wisely said that if the judgment of the time must be corrected by that of posterity, it is no less true that the judgment of posterity must be corrected by that of the time. Franklin Roosevelt cannot escape becoming a national saga, enshrined in myths, if you will. Myths endure only when rooted in essential truth; as such they serve to guide and sustain the high endeavors of a people. Enduring myths do not survive detached from the man who calls them forth. As it was of Lincoln, so it will be of Franklin Roosevelt, vast as are the surface differences between them. They both had the common touch—a sense of kinship with their fellows, the sense of the deep things men have in common, not common in the sense of what is vulgar and unedifying. The Roosevelt saga will never swallow up Roosevelt the man, whose friendship gave hope to millions who never knew him and whose death brought a feeling of intimate, personal loss to millions who never saw him. Identification with his fellow men was Roosevelt's profoundest characteristic and the ultimate key to his statesmanship. He was an instinctive democrat, a democrat in feeling and not through reflection; he was a spontaneous fellow-citizen and did not become one through abstract speculation about government. More than once I was asked after March 4, 1933, " W h y does F. D. R . hate the rich? W h y does he have a skunner against the J. P. Morgans?" Invariably I replied, "Nothing could be farther from the truth. He isn't against the rich and the powerful. He is merely not for them because they are rich and powerful. He has the same feeling about them that he has about his neighbors in Hyde Park, pursuing their modest callings. Wealth and the power that wealth confers seemed to him negligible, indeed irrelevant, to the right feeling about them as people. Nor should it cloud our judgment regard2 2

Franklin Delano Roosevelt ing the consequences of their actions to society." An episode which I had the good fortune to witness right here in Hyde Park illustrates this attitude of Roosevelt's in seeing men as men. He drove up to a neighboring farmer, who for all I know may be here today, with whom he was in negotiation about a piece of land. This was in the middle thirties, when the cares of office might well have weighed down the strongest of men. The President and his neighbor entered into converse, out of earshot of the rest of us in the President's car, when I suddenly heard, what I could hardly believe I had heard, this self-respecting and selfreliant fellow American say to the President of the United States: Mr. Roosevelt, you and I are both very busy men. Suppose we continue this talk at some other time when we both have more time.

The President accepted this, as though it were the most obvious remark to make to the head of the most powerful nation in the world, and with the utmost good humor, he replied: Very well, Peter, I'll try to get hold of you some other day when you have more time.

This little episode, it seems to me, reveals more about Franklin D. Roosevelt than does many a heavily documented doctoral thesis. Not that Roosevelt was an undiscriminating lover of his kind. His friendliness was so comprehending that his uncanny perception of the qualities of men was a less obvious trait. He was keenly aware of men's foibles and frailties, of their limitations as well as their gifts. But because he also identified himself with the frailties and foibles of his kind, he escaped the bane of self-righteousness and the corrosion of cynicism. 2

3

Of Law and Life and Other Things This permeating friendliness of Roosevelt expressed true feeling. Not less true were depths within him which were hardly accessible to anyone. From the time when he was a boy, according to his mother, he had a self-sufficiency and strength which come from the reserves of an inner life. In the light of events, his qualities of character can be deduced from the first magazine article published about Roosevelt—a delineation of him as a young state senator, in The New York Times for January 22, 1 9 1 1 , by its Albany correspondent familiarly known as "Baron" Warn. In those early days, as thirty years later in the White House, while to outward view he had a gaiety at times bordering on jauntiness, Franklin Roosevelt had a will of steel, well sheathed by a captivating smile. These reserves, deep below his outward easy-goingness, were doubtless the source and sanctuary of his resolute determination in overcoming obstacles, both in his personal life and in the conduct of affairs, that so often make men falter and not run the course. Our friend had, no doubt, the common touch. But he had also another quality—that mystical touch of grace, a charismatic quality that stirs comfortable awe, that keeps a distance between men and a leader and yet draws them to him. What was said of Benjamin Franklin may be said of Franklin Roosevelt, that he was "a harmonious human multitude." There were fused in him the qualities necessary for leading our people out of a period of deepening economic and moral deterioration by invigorating, through precept and example, the forces of democracy. The same qualities equipped him to serve as an energy of hope for liberty-loving people everywhere in resisting seemingly invincible challenges to civilization. His sophistication gave him understanding of men. His sympathy gave him trust in them. What Winston Churchill characterized as Roose24

Franklin Delano Roosevelt velt's "power of gauging the tide and currents of its mobile public opinion" enabled him to govern our heterogeneous democracy. His trustfulness in them made the people return the trust. The public issues that aroused so much rancor and conflict in the Roosevelt era will eventually, and before very long, be things of the forgotten past, as public issues which gave rise to the bitterness and passion that swirled around the heads of Jefferson and Jackson and Lincoln have become things of the forgotten past. Most political issues are ephemeral. Those leaders of our people abide who represent some universal element in the long adventure of man, represent qualities that kindle the heart and fortify the spirit. Franklin Delano Roosevelt belongs to this very small band of men who, generation after generation, accompany mankind on its fateful journey, and each of us in the gladness and gratitude of his heart is here to bear testimony to the friend who abides with us.

25